Citation Nr: 0109826
Decision Date: 04/03/01 Archive Date: 04/11/01
DOCKET NO. 93-13 067 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a rating in excess of 20 percent for post-
operative amputation of the right fourth metatarsophalangeal
joint with neuroma and degenerative changes of the first
metatarsophalangeal joint (formerly characterized as
ostectomy with resection of the proximal phalanx of the right
fourth toe and post-operative bunionectomy of the right great
toe, on a extraschedular basis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Richard E. Coppola, Counsel
INTRODUCTION
The veteran served on active duty from September 1957 to June
1961.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO).
FINDING OF FACT
The veteran's right foot disability does not present such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 20 percent, for
post-operative amputation of the right fourth
metatarsophalangeal joint with neuroma and degenerative
changes of the first metatarsophalangeal joint on an
extraschedular basis, have not been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, (2000); Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
Review of the service medical records reveals the veteran
sought treatment many times for painful feet. In May 1961, a
proximal phalangectomy (ostectomy) of the right fourth toe
was performed.
In January 1962, the RO granted service connection for
ostectomy of the fourth right toe and evaluated the
disability as zero percent disabling.
In the report of a VA examination conducted in June 1976, it
was noted that the veteran's right fourth toe was shortened
approximately 1 phalanx in depth. The report shows that she
was employed as a medical secretary. The diagnosis was
residuals of an ostectomy of the fourth toe on the right.
In September 1976, the RO granted an increased rating to 10
percent for tender and painful ostectomy of the right fourth
toe.
A VA examination was conducted in July 1977. The diagnosis
was post-operative ostectomy of the proximal fourth toe of
the right foot with pain dorsally and pain in the proximal
portion of the fifth ray at the tarsometatarsal area. No
alteration of sensation or calf atrophy was present.
A July 1977 statement from her employer shows that the
veteran was employed as a clerk typist, which required that
she stand for most of the workday.
The veteran was hospitalized for five days from August to
September 1980 for complaints of right foot pain. It was
noted that her fourth right toe had been a source of pain.
While she was hospitalized, amputation of the toe was
performed. The operation report notes that the toe was
disarticulated at the metatarsophalangeal (MTP) joint. The
final diagnosis was hammer toe, bilaterally, fourth toes. A
letter dated in September 1980 shows the veteran was advised
to remain off work for two weeks.
In October 1980, the RO re-characterized the service-
connected foot disability as post-operative amputation of the
right fourth toe metatarsophalangeal joint and denied a
rating in excess of 10 percent for the disability.
VA outpatient treatment records dated from September 1980 to
March 1981 include complaints of right foot pain which had
increased after amputation of the fourth toe.
According to the report of a March 1981 VA orthopedic
examination, the veteran reported having pain in her right
foot since active duty. The pain had changed in quality
since the amputation of her toe to a shooting pain which was
localized. The diagnosis was pain in the right fourth toe,
most likely on a neurogenic basis. The veteran reported
being employed by the federal government as a clerk typist
since February 1980.
In December 1981, the veteran was afforded a VA neurological
examination. The veteran complained of severe pain in the
area of her amputated right fourth toe and reported she was
unable to walk long distances. Following examination, the
diagnosis was Morton's neuroma of the right fourth toe. It
was the examiner's opinion the neuroma at the site of the
amputation of the right fourth toe was responsible for the
severe pain in the veteran's right foot and of her inability
to walk long distances. She reported being employed at by
the federal government as a timekeeper since October 1980.
In April 1981, the RO granted an increased rating for the
right foot disability from 10 percent to 20 percent,
effective August 27, 1980, for what was characterized as
post-operative amputation of the right fourth toe
metatarsophalangeal joint with neuroma and rated under
Diagnostic Code 5172-5284.
The veteran was hospitalized in April 1983 for an increasing
bunion deformity of the right foot. A McBride bunionectomy
of the right foot was performed. The veteran did well
postoperatively and arrangements were made for follow-up
outpatient care. The examiner noted that the veteran could
return to work in approximately two-to-three months. She was
again hospitalized in October 1984. She was complaining of
increasing deformity of her right fifth toe, with deviation
medially. She reported she was unable to walk more than a
few blocks. The diagnoses were painful varus deformity of
the right fifth toe and status post amputation of the fourth
toe. Removal of the proximal phalanx portion of the fifth
toe, with revision of the stump of the fourth toe and
syndactylization of the fourth and fifth toes was performed.
The veteran did well and arrangements were made for follow-up
outpatient care. The examiner noted that the veteran could
return to work in one month.
VA outpatient treatment records dated in 1985 and 1986 reveal
intermittent complaints of pain in the right foot. In March
1985, the veteran reported she did not want molded shoes,
which were prescribed by a VA physician. An X-ray of the
foot in March 1986 revealed no radiographic signs of
osteomyelitis. On a VA examination in August 1986 she was
noted to have a painful neuroma at the base of the fourth
toe. The veteran reported being employed by the federal
government as a travel clerk. In October 1986, it was noted
that she appeared to have symptoms of a traumatic neuroma in
her right foot, which could be due to the previous surgery
performed on her right fourth and fifth toes.
In May 1987, the veteran complained of intermittent pain in
her foot. The provisional diagnosis was neuroma. In August
1990, she complained of pain in the foot. The assessment was
questionable neuroma of the right foot. In November 1990,
she sought treatment for pain along the lateral aspect of the
right foot, which was continuous.
The veteran sought VA treatment for foot pain on several
occasions in 1992. In April 1992, severe pain with symptoms
strongly suggestive of Morton's neuroma was noted.
In a statement dated in May 1992, F. Smith, M.D., noted that
the veteran was experiencing severe pain in her right foot
and numbness in the third toe and that the symptoms were
strongly suggestive of a Morton's neuroma which was located
in the interval between the fourth metatarsal head and the
third metatarsal head.
A VA orthopedic examination was conducted in June 1992. The
veteran complained of pain in her foot. She had a molded
shoe. Physical examination revealed an ablation of the
fourth toe of the right foot. A minimal overlap of the fifth
toe with an absence of the MTP joint of the fifth toe was
present. There were also some residuals of what appeared to
have been bunion surgery on the right great toe with minimal
stiffness but 10 degrees of dorsiflexion and 10 degrees of
plantar flexion of that toe which was somewhat painful in
motion. Palpation of the fourth stump and the fifth
remaining ray of the right foot were also painful. The
veteran walked with a limp. No atrophy of the lower
extremity musculature was noted. X-rays revealed the absence
of all phalanges of the fourth ray of the right foot and the
absence of the joint of the proximal phalange of the fifth
toe. The veteran reported being employed by the federal
government performing travel related work since December
1988.
In her December 1992 Substantive Appeal, the veteran stated
that her foot and back caused constant pain. She stated that
the discomfort impaired her ability to function properly and
she had put in for retirement.
A VA clinical record dated in October 1994 shows that the
veteran was seeking treatment for increasing pain in the
right foot which limited her ambulation to a few blocks. The
veteran was able to ambulate without devices, using the heel
of her right foot.
The most recent VA outpatient treatment records show no
complaints or treatment of a right foot disorder in records
dated in 1995 and 1996. A January 1996 record noted that the
veteran would be coming in for VA outpatient care after work.
The report of a June 1995 VA foot examination notes that the
veteran was complaining of right hip problems and pain in the
scar at the site of the fourth toe amputation. The veteran
walked with a limp favoring the right hip. Physical
examination of the right foot revealed the absence of the
fourth toe with a positive Tinel sign in the scar at the site
of the amputation and a small nubbin of skin which was tender
in that area. Considerable shortening of the fifth toe
without restriction of motion was reported. A scar was
present over the medial aspect of the distal metacarpal at
the site of excision of an exostosis there. X-rays revealed
the absence of the fourth toe at the MTP joint and the
absence of the proximal half of the proximal phalanx of the
fifth toe. There was also evidence of an exostosectomy of
the medial aspect of the first metatarsal with no
degenerative joint disease of the MTP joint.
In March 1996, the RO granted a separate 10 percent
evaluation under Diagnostic Code 7804 for the post-operative
scar on the right fourth toe, MTP joint.
During a November 1996 VA endocrine consultation examination
for Paget's disease, the veteran stated that she had worked
most of her life performing office work and that she was
fairly sedentary.
At the time of a VA examination of the veteran's feet in
September 1997, she complained of pain in the right forefoot,
which had increased after surgeries. She also reported nerve
pain extending over the forefoot of the right foot which
encompassed the area of the fourth and fifth metatarsal heads
and the remaining fifth toe. Her main complaint was the
inability to wear different types of shoes and inability to
walk or stand for extended periods. Physical examination
revealed minimally diminished sharp, dull and vibratory
sensation of the right foot. Skin temperature and turgor
were normal and the skin was dry. There was evidence of
surgical intervention along the first MTP joint of the right
foot and an amputation of the fourth digit of the right foot
with evidence of surgical intervention at the fifth toe of
the right foot with some shortening of the fifth digit.
There was axial rotation of the fifth digits bilaterally. It
was noted that due to "extensive guarding, muscle strength
and examination at the fourth and fifth metatarsal areas of
the left foot was almost impossible." It was also noted
that the veteran did not allow palpation of the area of the
previous surgical site. Palpation proximal to the metatarsal
heads of the fourth and fifth digits did not elicit
discomfort. It was reported that range of motion of the MTP
joints of the first, second and third toes of the "left"
foot gave occasional mild discomfort but upon
redirection/distraction of the veteran, no complaint or
indication of pain was noted at these sites. Due to the
veteran's guarding it was impossible to evaluate for a
Morton's neuroma in the third intermetatarsal space of the
right foot and it was not possible to determine if there was
a palpable click or Mulder's sign.
The examiner noted that the veteran could stand on her heels
but could stand on the toes of only her left foot. The
veteran was unwilling or unable to stand on the toes of her
right foot secondary to complaints of pain. Muscle strength
was markedly decreased in the right foot but it was not
apparent to the examiner if this was due to lack of muscle
power or guarding. The examiner noted that assessment of any
functional limitation due to shortening of the fifth digit
could only be provided based on clinical experience since
examination was not feasible. The examiner reported that a
resection of the base of the fifth digit proximal phalanx
with syndactylization usually resulted in abatement of
symptomatology and minimal to no functional loss. Evidence
of a neuroma could not be ascertained due to examination
difficulties.
A letter dated in August 1999 from A. I. Levy, D.P.M., shows
that he examined the veteran's foot in July 1999 and reviewed
certain documents the veteran presented in conjunction with
the examination. It was noted that the veteran complained of
difficulty tolerating shoe gear; she could only wear a flat
type shoe with a low heel. When she wore high heels or a
closed front shoe she experienced pain. Physical examination
revealed well-healed surgical scars on the right foot. There
was a large gap in the area of the previously amputated right
fourth toe. The right fifth toe was medially deviated and
encroached into the space that was previously occupied by the
fourth toe, and there was a resultant deformity of the fifth
metatarsal head laterally due to malposition of the fifth
toe. It was noted that neurologic sensation was very
difficult to test. Manipulation of the fifth toe was painful
and manipulation of the stump of the fourth toe was very
painful. Manipulation and palpation of the interspaces for
Mulder's sign test was "extraordinarily" painful. Dr. Levy
stated that, while not classic for a Mulder's sign, the
examination suggested a strong hypersensitivity reaction
consistent with a Mulder's sign or other neurogenic type of
mass. The pain response was described as exceptionally high
with any type of manipulation. The veteran's gait was noted
to be ataxic and she walked with avoidance from the right
forefoot area. X-rays were noted to show small residual
sections of bone just lateral to the fourth metatarsal head
and just lateral to the fifth metatarsal head. It was opined
that they most likely represented small fragments of bone
left over from the surgery. The diagnostic impression was
iatrogenic shortening and instability of the right fifth toe
and neurogenic mass representing a Morton's neuroma or a
variant of Morton's neuroma. It was the examiner's opinion
with a high degree of medical certainty that pain and
disability, as well as disfigurement and malposition of the
right fifth toe, were secondary to resection of the base of
the fifth toe, causing shortening, instability and pain. Dr.
Levy noted the etiology of the mass was difficult to
determine; it might be a true Morton's neuroma or very
possibly an iatrogenic nerve injury associated with the
surgery.
In September 1999 a VA examiner noted that X-rays of the
veteran's right foot revealed post-operative changes in the
distal portion of the first metatarsal. There was a change
in the fourth metatarsal head, with evidence of the
amputation of the fourth toe. The fifth toe showed some loss
of the proximal portion of the proximal phalanx, compatible
with the surgical procedure that was performed. A varus
deformity was noted clinically and by X-ray. It was the
examiner's opinion that the shortening of the right fifth toe
was related to the surgical procedure for the lateral right
foot pain the veteran had. The right foot disability was
related to the deformity secondary to the surgery. The
examiner opined that the foot disability was of a moderately
severe nature and that the veteran had some functional
limitation in the form of pain, a limp and difficulty wearing
shoes.
In an April 2000 written presentation, the representative
argued that the veteran's service-connected right foot
disability presents an unusual disability picture because she
has difficulty wearing shoes. The representative argued that
this demonstrates entitlement to an extraschedular rating.
In June 2000 the Board remanded the case to the RO for
additional development. The Board requested the RO to
address this issue and provide the veteran with the
opportunity to submit evidence and argument on this issue.
The RO contacted the veteran by letter later that month. The
veteran did not respond or otherwise argue in support of this
issue. The RO obtained the most recent VA medical treatment
records dated through December 2000; however, they show
treatment for disabilities not at issue on appeal.
Criteria
The VA Schedule for Rating Disabilities (Schedule) provides
that ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience. To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, upon field station submission, is authorized
to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities. The governing
norm in these exceptional cases is: A finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1) (2000).
Analysis
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other
things, this law redefines the obligations of the VA with
respect to notice and the duty to assist. This change in the
law is applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100
(2000). See also Karnas v. Derwinski, 1 Vet. App. 308
(1991).
The Board initially notes that the notice and duty to assist
requirements of the new law have been satisfied in this
instance. The issue of an increased rating for the veteran's
foot disability was remanded on multiple occasions to obtain
additional evidence regarding the status of the disability.
The RO has made reasonable efforts to obtain evidence
necessary to substantiate the veteran's claim, including any
relevant records adequately identified by the veteran as well
as authorized by her to obtain. These records include
evidence regarding the veteran's employment history and
pertinent medical records relating to the veteran's
treatment, including the history pertaining to
hospitalization for the right foot disability. The veteran
has had an opportunity to offer evidence and she has made
arguments and submitted evidence on the merits of her claim.
There is no reasonable possibility that further development
would aid in substantiating the claim. The VA has complied
with its duty to assist the appellant in the development of
her claim. 38 U.S.C.A. § 5107(a) (West 1991); Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a),
114 Stat. 2096, 2096-2098 (2000) (to be codified as amended
at 38 U.S.C. §§ 5103, 5103A).
On each occasion that the issue of an increased rating for
the veteran's foot disability was remanded a copy of the
remand outlining the requested development was provided to
the veteran and her representative. In June 2000 the Board
remanded the case to the RO specifically for development of
evidence that would be relevant to an extraschedular rating,
noting in the remand the type of evidence that would support
this issue. The Board requested the RO to address the issue
and provide the veteran with the opportunity to submit
evidence and argument on the issue. The RO contacted the
veteran by letter later that month, but she did not respond
or otherwise provide evidence or argument in support of this
issue. In light of the foregoing, the Board is satisfied
that all relevant facts have been adequately developed to the
extent possible; no further assistance to the veteran in
developing the facts pertinent to her claim is required to
comply with the duty to assist the veteran as mandated by the
Veterans Claims Assistance Act of 2000.
Accordingly, it is concluded that the veteran is not
prejudiced by the Board deciding her claim on the merits
without remanding it to the RO for consideration of the new
legislation. As set forth above, VA has already met all
obligations to the veteran under the new legislation. Thus,
a remand for consideration of the new law by the RO would
only serve to further delay resolution of the veteran's
claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
The evidence shows that the veteran's right foot disability
caused significant interference with her employment and
required several periods of hospitalization because of right
foot surgeries. However, this was many years ago. She was
hospitalized in May 1961 for right fourth toe surgery and for
several days in 1980 for amputation of the fourth right toe.
The evidence shows that the latter surgery resulted in a two-
week period during which she was unable to work. At that
time she was employed as a medical secretary or clerk typist,
which for unexplained reasons reportedly required that she
stand for most of the workday. The veteran reported missing
significant time from work during the VA examinations
performed in the late 1970's and early 1980's. Finally, the
veteran was again hospitalized in April 1983 and in October
1984 for additional foot surgeries. After the April 1983
surgery, it was noted that the veteran could not return to
work for approximately two-to-three months, and after the
October 1984 surgery, she could not return to work for one
month.
While the above evidence shows that the veteran's right foot
disability resulted in repeated hospitalizations and
significant time lost from work in the remote past, our focus
is on the more recent past and present. The evidence does
not show further hospitalization for the veteran's right foot
disability since the mid-1980s.
The evidence reflects that the veteran had been employed for
many years by the federal government in variously reported
capacities. In her December 1992 Substantive Appeal, she
stated that her foot and back caused constant pain and that
the discomfort impaired her ability to function properly;
thus, she had applied for retirement. However, despite her
contention that she could no longer work due to her right
foot disability, the evidence shows that she continued
working, as noted in a January 1996 VA outpatient treatment
record.
The evidence further shows that during a November 1996 VA
consultation for Paget's disease, the veteran stated that she
had worked most of her life performing office work and that
she was fairly sedentary. This evidence shows that the
veteran continued working and that, in addition to her right
foot disability, she also had Paget's disease of the bone and
complained of fatigue and musculoskeletal symptoms, all
unrelated to her service-connected foot disability. Noting
was noted at that time to indicate that the foot disability
resulted in an exceptional or unusual disability picture with
such related factors as marked interference with employment.
The representative has argued that the veteran's service-
connected right foot disability presents an unusual
disability picture because she has difficulty wearing shoes.
It is not alleged that the veteran can not wear shoes;
rather, it appears that she is unable to wear closed shoes
with high heels. However, the esthetics of the veteran's
footwear is not a factor for consideration when deciding
whether her foot condition markedly interferes with
employment as a clerical/office worker or otherwise creates
an unusual disability picture.
While statements of the veteran can be accepted as showing
that her right foot disability is symptomatic, limits the
type of shoes she can wear, and may have an affect on certain
physical activities, neither her statements nor the other
evidence (including the medical records) show that the
service-connected disability results in marked interference
with employment. The percentage ratings under the Schedule
are themselves representative of the average impairment in
earning capacity resulting from diseases and injuries. 38
C.F.R. § 4.1 specifically sets out that "[g]enerally, the
degrees of disability specified are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability." That provision speaks
directly to the facts of this case. Factors such as missing
time from work or requiring periodic medical attention are
clearly contemplated in the Schedule and provided for in the
schedular evaluations currently assigned to the veteran's
right foot disability. What the veteran has not shown in
this case is that her right foot disability, in and of
itself, results in an unusual disability picture that renders
the criteria and/or degrees of disability contemplated in the
Schedule impractical or inadequate. Accordingly,
consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in
this case.
The Board finds that the veteran's right foot disability does
not present such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. Thus, the criteria for an evaluation in excess of
20 percent, for post-operative amputation of the right fourth
metatarsophalangeal joint with neuroma and degenerative
changes of the first metatarsophalangeal joint on an
extraschedular basis, have not been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, (2000); Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114
Stat. 2096 (2000).
ORDER
Entitlement to a rating in excess of 20 percent for on an
extraschedular basis for the service-connected right foot
disorder is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals